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Opinions of The and the Court of Appeals To be used in
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CPS Commonwealth
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Commonwealth v. Martino, 412
Supreme Judicial Court of Massachusetts,
Hampden.
Argued
Decided
Peter J. Avenia, for defendant.
Ariane D. Vuono, Asst. Dist. Atty., for the Com.
Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and
GREANEY, JJ.
GREANEY, Justice.
A jury in
the Superior Court found the defendant guilty of murder in the first degree by
reason of deliberate premeditation and extreme atrocity or cruelty in
connection with the strangulation of his former girl friend. (FN1) [412
The
evidence, viewed in the light most favorable to the Commonwealth, Commonwealth v. Anderson, 396
On the day
of the murder, September 21, 1987, the victim made a telephone call to the
defendant at approximately 3:30 P.M.
The defendant told her that he had a visitor and asked her to call him back in fifteen
minutes, which she did. The defendant
recorded this second telephone conversation on a videotape. During the conversation, the victim expressed
concern[412 Mass. 270]
about a number of repairs her house required, and the defendant offered
to help her with some of the repairs.
The victim also asked whether she could borrow the defendant's
typewriter. They arranged for the
defendant to visit the victim and her children at approximately 6 P.M. The defendant arrived at approximately 6:30
P.M. and left at some time after 8:30 P.M.
He then drove to a tavern in Greenfield to watch a "Monday Night
Football" game on television.
Several witnesses, including a bartender, saw the defendant at the
tavern at some time during the first half of the football game. The game started at 9 P.M., and its second
half began at approximately 11 P.M.
The next
morning, a regular babysitter for the victim's children (who was also a friend
of the victim) arrived at the victim's home.
This friend knocked on the back door but no one answered. She could hear the children inside the house
and let herself in with a key the victim had given her. The friend fed the children in the kitchen,
and noticed a note to the victim from the defendant. (FN3)
Concerned that the victim had apparently left the children alone, the
friend made contact with another babysitter who came to house. Sometime after this babysitter arrived, the
victim's body was discovered in the basement and help was promptly called.
Officer
Raymond Zukowski of the Greenfield police arrived at the victim's home at about
7:40 A.M. Sergeant Norman Roberts of
the Massachusetts State police arrived next and went to the basement. He saw a sheet of yellow‑lined paper
under the victim's right knee. The sheet
of paper had a shoe print on one side and the words "I love you Geg [sic ]" on the other side. The words were written in the defendant's
handwriting; the shoe print matched the
sole of a sneaker owned by the defendant.
There was also a pile of wood in the basement near where the body was
found, and wood splinters [412 Mass.
271] were discovered on the shirt
and pants the defendant had worn on the night of the murder. A third note was taken by the police from the
defendant's van which read as follows:
"I really don't know how to start this. I never wanted or planned to hurt you, it was
the farthest thing from my mind, believe me, I do love you, why I'm not showing
it anymore, I guess because I...."
The county
medical examiner was the next person to arrive.
He pronounced the victim dead by strangulation and examined her
body. He found three distinct ligature
marks on the victim's neck and found a length of rope near the body. This piece of rope was similar to several
other lengths of rope discovered by the police at the defendant's home.
Based on
the fact that the victim's body was in full rigor, the medical examiner
determined that the victim had died approximately twelve hours prior to his
examination of her body. A second
medical examiner (who was also a pathologist) came to the scene at
approximately 10:30 A.M. This physician
also estimated that the victim had died twelve to fourteen hours earlier. Further investigation by forensics personnel
assigned to the case recovered three hairs from the victim's body. One hair, found in the victim's mouth, was
very similar to hair samples taken from the defendant.
1. Sufficiency of the evidence. The defendant argues that at least one of
his motions for a required finding of not guilty, which were filed at the
conclusion of the Commonwealth's case and at the conclusion of all of the
evidence, should have been allowed. He
urges that the Commonwealth's case is intrinsically so weak that his conviction
rests on nothing more than speculation.
The defendant particularly emphasizes his careful refutation of the
evidence presented in the Commonwealth's
case, maintaining that, at best, the
prosecution succeeded only in pointing a finger of suspicion at him.
[1][2] In
reviewing the judge's decision to deny the defendant's motions for a required
finding of not guilty, we inquire whether the evidence, considered in the light
most favorable to the Commonwealth, was sufficient to satisfy a reasonable [412 Mass. 272] jury of each element of first degree murder beyond a reasonable
doubt.
Commonwealth v. Anderson, 396 Mass. 306, 311, 486 N.E.2d 19
(1985). A conviction may be properly
based entirely on circumstantial evidence so long as that evidence establishes
the defendant's guilt beyond a reasonable doubt. Commonwealth v. Nardone,
406 Mass. 123, 129, 546 N.E.2d 359 (1989). Commonwealth v. Montecalvo, 367 Mass. 46,
54, 323 N.E.2d 888 (1975).
[3] The
prosecution introduced sufficient evidence of the defendant's guilt under these
standards. There was no physical or
scientific evidence to warrant a finding that the victim had committed
suicide. The Commonwealth established
both motive and opportunity on the part of the defendant. The defendant acknowledged that he and the
victim had fought shortly before the murder and that he was upset because the
victim had begun seeing another man. The
defendant admitted having been present at the victim's home about the time at
which expert medical testimony estimated the murder to have occurred. A note in the defendant's handwriting, and
bearing his footprint, was found partially under the victim's body, and other
notes written by him could be found to have incriminatory tones. A hair found in the victim's mouth was
similar to samples of the defendant's hair.
Wood splinters were found on the sleeves of the jacket the defendant
wore on the night of the murder, and there was a stack of wood in the basement
of the victim's house, near where the body was discovered.
In cases
in which the evidence is largely circumstantial, "it is not essential that
the inferences drawn should be the only necessary inferences.... It is enough that [the inferences] be
reasonable and possible." Commonwealth v. Merrick, 255 Mass. 510,
514, 152 N.E. 377 (1926). "To the
extent that conflicting inferences are possible from the evidence, 'it is for
the jury to determine where the truth lies.' " Commonwealth v. Wilborne,
382 Mass. 241, 245, 415 N.E.2d 192 (1981), quoting Commonwealth v. Amazeen,
375 Mass. 73, 81, 375 N.E.2d 693 (1978).
The defendant's arguments are in substance directed toward the weight
and credibility of the evidence, a matter wholly within the province of the
jury. See Commonwealth v. Nardone, supra, 406 Mass. [412 Mass. 273] at 129‑130,
546 N.E.2d 359; Commonwealth v. Montecalvo, supra, 367
Mass. at 54, 323 N.E.2d 888. Further,
the Commonwealth's position as to proof had not deteriorated at the close of
all the evidence. The judge properly
denied the defendant's motions for a required finding of not guilty.
2. Pretrial motions. The defendant filed several motions to
suppress evidence obtained in connection with his interrogation and arrest,
from the search of his house and van, and from his trial counsel. The defendant also filed a motion seeking an
evidentiary hearing under the principles discussed in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667
(1978), asserting that a false statement had been knowingly, intentionally, or
recklessly made by the police in an affidavit filed in support of the
application for a search warrant for his house.
Finally, the defendant moved to dismiss the indictment on the ground
that the integrity of the grand jury had been impaired.
The judge
held an evidentiary hearing on these motions.
The judge's denial of the defendant's motions was accompanied by a very
comprehensive and scholarly memorandum of decision. The subsidiary findings of fact made by the
judge are fully supported by the evidence she found credible, and we accept
them. We proceed to discuss the
defendant's legal issues raised on appeal in connection with the motions in
light of the judge's findings of fact.
(a) The motions to suppress evidence obtained
during interrogation, from the search of the van, and from the defendant's clothing. As the judge found in her memorandum of
decision, the defendant was interrogated by the police on September 22, 1987,
the day after the murder and prior to the issuance of a warrant for his arrest. The defendant accompanied the police to the
district attorney's office in Greenfield, where he gave a statement to the
police and signed a form in which he consented to the search of his van and any
locked or unlocked containers therein.
Later that evening, prior to the issuance of a search warrant for the
defendant's home, two police officers went to his home and obtained from the
defendant the clothes he had been wearing on the evening of the murder.
[412 Mass. 274] [4] The defendant now maintains that his consent to questioning,
to the search of his van, and to delivering his clothes to the police was not
voluntary. The defendant argues that the
evidence from these three sources was obtained in violation of his rights under
the Fourth and Fifth Amendments to the Constitution of the United States and
art. 14 of the Declaration of Rights of the Massachusetts Constitution, and,
therefore, should have been suppressed.
The record
provides no basis for the defendant's assertion that his consent was not given
voluntarily. He acknowledges that the
police administered Miranda warnings to him, that he signed a form waiving his
Miranda rights, that he signed a form consenting to the search of his van, and
that he was advised that he could suspend the police interrogation or obtain
counsel anytime he chose. Nonetheless,
he argues that his statements and consents were not voluntary because he felt
tired and distraught and did not really believe he was free to go, to remain
silent, to refuse to consent to the search of the van, or to refuse to turn
over his clothing. In essence, the
defendant urges us to accept his version of the facts. (FN4)
The
defendant presented these same claims to the judge, who categorically rejected
them. She made findings of fact consistent
with the testimony given by the police which indicated that the defendant's
consent was voluntarily and intelligently given. We have repeatedly stated that "[t]he
determination of the weight and credibility of the testimony is the function
and responsibility of the judge who saw and heard [412 Mass. 275] the
witnesses, and not of this court." Commonwealth v. Harmon, 410 Mass. 425,
431, 573 N.E.2d 490 (1991), quoting
Commonwealth v. Moon, 380 Mass. 751, 756, 405 N.E.2d 947 (1980). Moveover, in reviewing the denial of a motion
to suppress, we will not disturb the findings of fact made by a judge absent a
showing of clear error. Commonwealth v. Yesilciman, 406 Mass.
736, 743, 550 N.E.2d 378 (1990), and cases cited. The defendant has failed to show that the
judge erred in any of her findings of fact, and we conclude that her
conclusions of law on this aspect of the case are sound. The defendant's motions to suppress were
properly denied.
(b) Evidence seized from defense counsel. The defendant argues that the videotape on
which the defendant recorded his telephone conversation with the victim on the
day of her death was improperly taken from his trial counsel and should have
been suppressed because no exigent circumstances justified its warrantless
seizure by the police. In addition, the
defendant argues for the first time on appeal that, even if exigent
circumstances justified the warrantless seizure, there was no justification for
the police to view the videotape prior to obtaining a warrant. We reject both arguments.
[5] As the
judge describes in her memorandum of decision, the defendant's trial counsel
entered the defendant's home while the police had the home under surveillance
but before a search warrant had been issued.
The police officer posted at the house for security purposes allowed the
attorney to enter, but was then told by a supervisor not to allow the attorney
to remove anything from the premises.
When the attorney emerged with the videotape and a copy of a restraining
order, the officer seized both items and would not allow the attorney to
replace the items in the house.
The judge
properly applied constitutional principles to the facts of the seizure. She found that the officer posted at the
scene knew that the attorney represented the defendant and knew that at least
one item the police planned to search for
[412 Mass. 276] in the house
after obtaining a warrant was a videotape.
(FN5) Exigent circumstances
justified the seizure of the evidence.
In view of what the officer at the scene knew, he had a reasonable basis
to believe that material evidence might be in the process of being removed from
the defendant's home. If material
evidence had been removed, it could have been impossible to safeguard it from
loss or destruction. This reasonable
belief as to the potential loss or destruction of evidence created an exigent
circumstance permitting the officer's warrantless seizure of the evidence.
Commonwealth v. Huffman, 385 Mass. 122, 125, 430 N.E.2d 1190 (1982).
Commonwealth v. Ortiz, 376 Mass. 349, 356, 380 N.E.2d 669 (1978).
Commonwealth v. Forde, 367 Mass. 798, 801, 329 N.E.2d 717 (1975).
Commonwealth v. Hall, 366 Mass. 790, 802, 323 N.E.2d 319 (1975).
We reject
the defendant's argument that the Commonwealth has not established that it was
impracticable to obtain a warrant to seize the videotape and restraining
order. The police did not have time to
obtain a warrant because the defendant's attorney was preparing to take the items
with him at the time of the seizure.
Indeed, the police were in the process of obtaining a warrant at the
time this exigency arose. Far from
unreasonably hindering the warrant process, the police were actively in the
process of doing all they could in order to secure a warrant. See
Commonwealth v. Cast, 407 Mass. 891, 904, 556 N.E.2d 69 (1990).
We reject
the defendant's further argument that the police created the exigency. The defendant hypothesizes that, instead of
seizing the evidence, the police could have forbidden the attorney to enter the
house, allowed him to return the items himself, or accompanied him into the
house to return the items. None of these
solutions would have been clearly adequate.
First, at the time the attorney entered the house, he told the officer
he only planned "to look around."
At this time, there was no reason for the officer to believe that the [412 Mass. 277] attorney intended to remove anything from the house and obviously
no reason to deny him access. Second,
allowing the attorney to replace the items on his own could have presented some
risk of their loss. Finally, the police
officer might not have wanted to enter the house with the attorney on the
chance that he could see evidence in plain view. Had the officer observed and seized any
evidence during such a warrantless entry, the defendant might have challenged
that evidence on the ground of a warrantless search. The exigency did not result from any
misconduct or unreasonable delay by the police.
Cf. Commonwealth v. Forde, supra,
367 Mass. at 801‑803, 329 N.E.2d 717 (police failed to get warrant after
having probable cause for a week). The
officer acted appropriately in seizing the evidence.
[6][7]
Lastly, the defendant argues that, even if exigent circumstances justified the
warrantless seizure of the evidence, the police had no justification for
viewing the videotape without obtaining a warrant. This argument was not raised below, so we
consider it under the substantial likelihood of a miscarriage of justice standard.
Commonwealth v. Garcia, 379 Mass. 422, 439, 399 N.E.2d 460
(1980). Because the police subsequently
obtained a warrant which expressly authorized them to search the defendant's
home and to seize any videotapes found there, the defendant cannot argue that,
but for the warrantless viewing of the videotape, the police would never have
acquired and viewed it. The police
eventually seized thirteen videotapes from the home when they executed the
search warrant. The viewing of the
videotape earlier than might otherwise have been possible did not create a
substantial likelihood of a miscarriage of justice. (FN6)
[8] (c) Motion for a Franks v. Delaware hearing. Prior to trial, the defendant moved for a
hearing pursuant to the [412 Mass.
278] principles discussed in Franks v. Delaware, 438 U.S. 154, 98
S.Ct. 2674, 57 L.Ed.2d 667 (1978), on the premise that an affiant, State police
Sergeant Norman Roberts, had intentionally or recklessly included a false
statement of fact in his affidavit filed in support of the warrant application. This statement involved the videotape
discussed above which Sergeant Roberts incorrectly stated had been partially
erased. The judge found that Sergeant
Roberts's misstatement was unintentional.
As pointed
out by the judge in her memorandum of decision, the defendant failed to make a
preliminary showing that the affiant's false statement was intentionally,
knowingly, or recklessly made.
Specifically, the judge relied on the fact that the officer who
initially viewed the tape was looking for the videotape depicting the victim
and the defendant having sexual intercourse, and he viewed the tape without its
audio portion engaged. Under these
conditions, the portion of the videotape that contained the recorded telephone
call appeared to be blank, and Sergeant Roberts reasonably believed it to be
blank. Because this portion of the
videotape was imbedded in an otherwise full tape, Roberts reasonably surmised
that the blank portion had been erased.
Thus, the predicate for a hearing under Franks v. Delaware was not shown.
See Commonwealth v. Amral, 407
Mass. 511, 522‑523, 554 N.E.2d 1189 (1990); Commonwealth v. Ramos, 402
Mass. 209, 215, 521 N.E.2d 1002 (1988); Commonwealth v. Singer, 29 Mass.App.Ct.
708, 713‑716, 564 N.E.2d 1037 (1991).
(FN7)
[9][10] (d) Motion to dismiss the indictment. The defendant argues that the integrity of
the grand jury was compromised by Sergeant Roberts's misstatement concerning
the erasure of the videotape. We
disagree. "In considering a claim
that false or deceptive evidence was presented to a grand jury, we have said
that a defendant must show that (1) the evidence was given to the grand jury
knowingly or with reckless disregard[412
Mass. 279] for the truth and for the purpose of
obtaining an indictment, and (2) that the evidence probably influenced the
grand jury's determination to indict the defendant." Commonwealth v. Kelcourse,
404 Mass. 466, 468, 535 N.E.2d 1272 (1989).
See Commonwealth v. Mayfield,
398 Mass. 615, 621, 500 N.E.2d 774 (1986).
"Inaccurate testimony given in good faith does not by itself
require dismissal." Commonwealth v. Kelcourse, supra. See
Commonwealth v. Reddington, 395 Mass. 315, 319‑320, 480 N.E.2d 6
(1985). Where, as is the case here,
there is no showing that the false statement was intentionally or recklessly
made, the judge properly denied the defendant's motion to dismiss the
indictment. (FN8)
3. Admission of evidence. The Commonwealth presented evidence from
several witnesses concerning the deterioration of the defendant's relationship
with the victim before she was murdered.
Prior to trial, the judge, in response to a motion in limine, issued a
comprehensive ruling which reflected a careful assessment of the evidence the
Commonwealth intended [412 Mass. 280] to introduce on this issue. The judge permitted the Commonwealth to
introduce evidence that (1) the defendant had accused the victim of
"sleeping around"; (2) the
victim had told a number of her friends and family that she no longer wanted to
be involved with the defendant; (3) the
victim had been injured in a physical altercation with the defendant; (4) the victim had her locks changed because
the defendant would not return her key and she was afraid of him; (5) the victim had her telephone number
changed to an unlisted number; and (6)
the victim obtained a restraining order against the defendant approximately one
week before she was murdered. The judge
excluded statements made by the victim that the defendant had beat her, had
tried to rape her, and had threatened revenge.
On appeal, the defendant does not argue that the evidence at issue was
not properly admitted. Rather, he
contends that he was prejudiced by the cumulative nature of the evidence. In addition, he argues that much of the
evidence consisted of prior bad acts, and, therefore, the prejudicial effect of
the evidence was unnecessarily exacerbated.
[11][12]
"In Massachusetts, evidence of other criminal behavior may not be admitted
to prove the propensity of the accused to commit the indicted offense but it is
admissible for other relevant probative purposes." Commonwealth v. Gallison,
383 Mass. 659, 672, 421 N.E.2d 757 (1981), citing Commonwealth v. Chalifoux, 362 Mass. 811, 815‑816, 291
N.E.2d 635 (1973). Furthermore,
"[t]he admission of such evidence generally is 'a matter on which the
opinion of the trial judge will be accepted on review except for palpable
error.'
Commonwealth v. Young, 382 Mass. 448, 462‑463 [416 N.E.2d 944]
(1981)." Commonwealth v. Cordle, 404 Mass. 733,
744, 537 N.E.2d 130 (1989), S.C., ante
412 Mass. 172, 587 N.E.2d 1372 (1992).
[13] The
judge engaged in a scrupulous analysis of all the evidence proposed by the
Commonwealth. Her rulings minimized the
prejudicial impact of the evidence of the defendant's hostile relationship with
the victim. Furthermore, the evidence
concerning the relationship between the defendant and the victim, including the
restraining order she had obtained and her decision to change the locks on her
house, was [412 Mass. 281] introduced by separate witnesses each
of whom had a different relationship with the victim. It was significant to the Commonwealth's case
that the victim shared her fear and anxiety toward the defendant with a number
of people. The evidence was not only
relevant to show "the 'entire relationship' between the victim and the
defendant," Commonwealth v. Cordle,
supra, 404 Mass. at 744, 537 N.E.2d 130, quoting Commonwealth v. Drew, 397 Mass. 65, 79, 489 N.E.2d 1233 (1986),
but it
also tended to show the depth
of the victim's fear of the defendant.
(FN9)
[14] 4. Denial of the motion for a mistrial. During the prosecutor's direct examination
of the man the victim had begun to date two weeks before she was murdered, the
witness unexpectedly stated that the victim had told him that "Greg
Martino threatened to kill me...."
The witness was interrupted by the judge who immediately interjected
"Stop. Side Bar." The defendant objected to the testimony, and
eventually moved for a mistrial. The
motion was denied. The judge then
ordered the testimony struck and instructed the jury as noted below. (FN10)
The defendant argues that he was greatly harmed [412 Mass. 282] by the
witness's spontaneous remark and, as a consequence, it was error for the judge
to have denied his motion for a mistrial.
We reject the argument.
The
decision whether to declare a mistrial lies within the trial judge's
discretion. Commonwealth v. Amirault, 404 Mass. 221,
232, 535 N.E.2d 193 (1989), and cases cited.
In this case, before the witness made his unanticipated remark, the jury
knew that the relationship between the victim and the defendant had
deteriorated considerably. In view of
the evidence of the failed relationship, it is difficult to imagine that the
jury could have been unduly influenced by the witness's spontaneous
remark. See Commonwealth v. Gil, 393 Mass. 204, 218‑219, 471 N.E.2d 30
(1984). In the circumstances, the
judge's use of a curative instruction was an adequate response to the
problem. See Commonwealth v. Gallagher, 408 Mass. 510, 518, 562 N.E.2d 80
(1990);
Commonwealth v. Amirault, supra, 404 Mass. at 239‑240, 535
N.E.2d 193.
[15] 5. The prosecutor's closing argument. In her closing argument to the jury, the
prosecutor commented in the manner noted below (FN11) on the explanation the
defendant gave at trial concerning the note found on the victim's kitchen
table. The defendant's trial counsel
objected to this portion of the prosecutor's argument at the conclusion of her
summation. The judge responded by
offering to emphasize in the final jury instructions that the defendant never
has to offer proof and "he certainly never has to explain
anything." The judge followed
through on this promise and later instructed the jury: "The presumption of innocence also means
that no person ever has to prove his or her innocence. No person charged with a crime ever has to
explain anything to a jury. Exactly [412 Mass. 283] the contrary is true." Despite this, the defendant argues that the
prosecutor's comment violated the principle of Commonwealth v. Person, 400 Mass. 136, 508 N.E.2d 88 (1987). We do not agree.
Here,
unlike Person, where the prosecutor
improperly commented on the defendant's silence, there was evidence that the
defendant's trial testimony differed from his pretrial position as to the
note. As the prosecutor indicated, the
defendant was asked when he was first interviewed by the police about the note
that had been left on the kitchen table.
At that time, the defendant stated that the note left on the table had
been written the afternoon before the victim was murdered. At trial, however, the defendant claimed that
he was referring to a different note when he was speaking to the police. He also testified that he had no idea what
happened to this other note. The
prosecutor was entitled to comment on the difference between the defendant's
pretrial statements and his trial testimony. Commonwealth v. Sherick, 401 Mass. 302,
304‑305, 516 N.E.2d 157 (1987).
The
defendant also criticizes the prosecutor's argument that consciousness of guilt
could be inferred from the defendant's failure to tell the police that he had
recorded a telephone conversation between himself and the victim on a
videotape. There was no objection to
this portion of the prosecutor's argument at trial. Accordingly, the standard of review is
whether the argument created a substantial likelihood of a miscarriage of
justice.
[16] The
defendant's claim that the prosecutor's remarks impermissibly infringed on his
right to remain silent fails for the simple reason that the defendant did not
exercise his right to remain silent. See Commonwealth v. Hartman, 404 Mass. 306,
317‑318, 534 N.E.2d 1170 (1989).
Compare Commonwealth v. Cobb,
374 Mass. 514, 520‑522, 373 N.E.2d 1145 (1978). As shown by the judge's findings of fact on
the defendant's pretrial motions, the defendant made a lengthy statement to the
police in which he discussed his relationship with the victim in some
detail. The full statement was
introduced in evidence after the judge ruled that it had been made
voluntarily. In view of the detail of
the statement, the defendant's omissions could [412 Mass. 284] be
found to be significant, and the prosecutor was entitled to comment on
them. (FN12) Commonwealth v. Sherick, supra,
401 Mass. at 305, 516 N.E.2d 157 (collecting cases where similar comments made
by prosecutors have been considered to be permissible comments on the
evidence).
6. Replacement of a deliberating juror. The defendant next challenges the judge's
discharge of a deliberating juror in his absence as a violation of his right to
a fair trial under the Fifth, Sixth, and Fourteenth Amendments to the United
States Constitution, art. 12 of the Declaration of Rights to the Massachusetts
Constitution, and G.L. c. 234, § 26B (1990 ed.). (FN13)
Specifically, the defendant argues that, although his trial counsel was
present when the judge made inquiries of the juror and agreed to the juror's
discharge, he had a fundamental right to be present. In addition, the defendant claims that the
record does not demonstrate that he made a voluntary, knowing and intelligent
waiver of his right to be present, and, therefore, that the alleged error
cannot be considered harmless.
The problem arose at the conclusion of a day
of deliberations, when the foreperson of the jury advised the judge that there
was a "serious problem" with one of the jurors who wanted to speak
with the judge. Efforts to resolve the
problem without the judge's speaking directly with the juror were [412 Mass. 285] not satisfactory. Thereafter,
the foreperson advised the judge (by way of a note) that "the problem
arises out of a declaration that perhaps should have been made by the juror
before she was selected. It might have
resulted in her being challenged. [The
juror] will meet with you in your chambers."
The
defendant's trial counsel and the prosecutor discussed the situation with the
judge at considerable length. It was
finally decided that the judge would ask the juror if anything had occurred
that might affect her impartiality. When
that question was posed to the juror, she responded in the negative. This inquiry took place in the lobby with the
defendant's trial counsel and the prosecutor present. There was no objection to the procedure, and
counsel did not request that the defendant be present. The judge, trial counsel for the defendant,
and the prosecutor then discussed various alternatives. What was apparent to everyone, however, was
that the "problem" affecting the juror, if indeed one existed, had
not been disclosed. The judge then
excused counsel to allow them some time to consider the situation again.
When the
lobby conference recommenced, it was agreed that the judge would make further
inquiry of the juror. The juror was then
called back into the lobby. The judge,
the defendant's trial counsel, and the prosecutor were present. Once again, the defense counsel made no
objection to the procedure. This time
when the judge asked the juror whether there was any matter that should have
been brought to the court's attention during empaneling of the jury, the juror
responded affirmatively. The juror then
revealed that her grandfather had been convicted of murder and had been
imprisoned for ten years. The juror also
indicated that, had she realized that the juror questionnaire form required the
disclosure of this information, she would have disclosed it. The inquiry then ended and another recess was
taken in order for counsel to determine what course of action to take.
Approximately
ten minutes later, the defendant's trial counsel and the prosecutor reported to
the judge that they had agreed that the juror should be discharged. The defendant's trial counsel also
stated: "For the record, I
explained [412 Mass. 286] the problem to [the defendant] and he
agrees." When the judge asked
whether the defendant's trial counsel would prefer an acknowledgement of the
defendant's agreement on the record, either in court or in the lobby with the
presence of the court stenographer, counsel replied: "I'm satisfied that [the defendant is]
satisfied [with] the volatility of leaving a person on there like that, and not
knowing the problems that could result in any way, and he agrees that this is
the best solution."
Thereafter,
the juror was excused. An individual
voir dire was conducted by the judge of each of the remaining eleven
jurors. Each juror was asked whether
anything had occurred at any time during the case "up to and including
this moment which would in anyway effect, or does effect, your ability to be
fair and impartial and judge the case based solely on the evidence?" All eleven jurors responded in the
negative. An alternate was then
selected, and the jury were instructed that they were required to begin their
deliberations anew.
[17] When
a judge conducts an inquiry about a consequential matter, such as occurred in
this case with the troubled juror, there is a requirement, deriving from the
constitutional rights of confrontation and fair trial, that the defendant and
his counsel be present. See Commonwealth v. Connor, 392 Mass. 838,
843 n. 1, 467 N.E.2d 1340 (1984); Commonwealth v. Robichaud, 358 Mass. 300,
301‑303, 264 N.E.2d 374 (1970); Commonwealth v. Perez, 30 Mass.App.Ct.
934, 935‑936, 569 N.E.2d 836 (1991); Commonwealth v. Bobilin, 25 Mass.App.Ct.
410, 415, 519 N.E.2d 1349 (1988); Commonwealth v. Hicks, 22 Mass.App.Ct.
139, 147, 491 N.E.2d 651 (1986). The
absence of the defendant from such a colloquy, however, does not automatically
constitute reversible error. See Commonwealth v. Hicks, supra. We conclude that no basis for reversal has
been demonstrated here.
[18] All
discussions by the judge with counsel and with the juror were made a matter of
record. That record unequivocally shows
that the defendant was fully informed of everything that occurred. No objection was made to the procedure
followed by the judge. The procedure was
carefully tailored to [412 Mass. 287] protect the juror's privacy and the
integrity of the jury as a whole, and to give the defendant, through his
counsel, sufficient opportunity to evaluate the problem and to arrive at a
solution that the defendant, at the time, thought was in his best
interests. Importantly, the defendant's
trial counsel indicated that the defendant
agreed to the discharge of the juror.
Further, counsel declined the opportunity to have the defendant's
acquiescence placed affirmatively on the record. Nothing has been provided to show that, at
the time the juror was discharged, the defendant disagreed with the resolution
arrived at after considerable inquiry and discussion.
In the
absence of any objection, (FN14) and in view of the affirmative representations
of defendant's trial counsel of the defendant's understanding and agreement
("good cause" existing under G.L. c. 234, § 26B, to replace the juror),
the defendant is not entitled to another trial because of the incident.
7. Allegations of ineffective assistance of
counsel. The defendant argues that
his trial counsel provided him with ineffective assistance of counsel by: (1) failing to object to the defendant's
absence during the examination of the juror who was discharged; (2) failing to accept the trial judge's offer
of jury instructions on manslaughter based on intoxication; (3) failing to request a "mere
presence" instruction; and (4) failing
to recognize that a defense witness would testify in a [412 Mass. 288] manner
favorable to the Commonwealth on cross‑examination. Because this is a first degree murder case,
"we need not focus on the adequacy of trial counsel's performance" to
decide the claims. Rather, "we
shall consider [under the standard set by G.L. c. 278,§ 33E] whether there was
an error ... and, if there was, whether that error was likely to have
influenced the jury's conclusion." Commonwealth v. Wright, 411 Mass. 678,
682, 584 N.E.2d 621 (1992). (a) The
defendant's absence when the judge conducted an inquiry into the possible
discharge of a deliberating juror provides no basis for relief. As has been discussed, the record clearly
demonstrates that the defendant's trial counsel conferred with him during the
interrogation of the juror and obtained his agreement to her discharge. The defendant has not shown that he was
excluded from participating in his defense.
[19] (b)
Trial counsel's refusal of the judge's offer to give a manslaughter instruction
based on evidence of the defendant's consumption of alcohol was proper. The record indicates that the defendant
participated fully in the decision to refuse the instruction. That decision was reasonable in view of the
slight evidence of alcohol consumption and the fact that the defense proceeded
on the theory that someone else committed the murder, a theory that would have been undermined had the
instruction been given. (FN15)
[20] (c)
The absence of a request for an instruction that evidence of the defendant's
presence at the crime scene alone was insufficient to warrant a conviction was
not significant. Because the
Commonwealth presented evidence which established far more than the defendant's
mere presence at the [412 Mass. 289] scene, there is no likelihood that
the jury could have convicted him on this evidence alone. This case is not like Commonwealth v. Cordle, 404 Mass. 733, 742‑743, 537 N.E.2d
130 (1989), in any material aspect.
[21] (d)
The decision to call a defense witness who gave testimony damaging to the
defense was proper. This witness
testified on direct examination that she had a telephone conversation with the
victim for approximately two hours on the evening of the murder. As the defendant concedes in his brief, this
testimony was important to him because the witness's testimony, if accepted,
tended to establish that the victim was still alive after the defendant had
left her home. The fact that the witness
gave harmful testimony when she was cross‑examined was a risk implicit in
her being called to testify. The
witness's testimony provided a key link in the defendant's over‑all
defense strategy notwithstanding her failures when pursued on cross‑examination. A new trial is not warranted simply because
this strategy was not so successful as originally planned.
8. Review under G.L. c. 278, § 33E. The defendant also asks that we exercise our
power under G.L. c. 278, § 33E, to order a new trial, or, in the alternative,
to reduce the verdict to manslaughter.
The defendant is not entitled to the relief he seeks.
[22] In
support of his request for a new trial, the defendant argues that his expert
witnesses were better qualified than the experts presented by the Commonwealth
and that the testimony of a defense witness whose testimony on cross‑examination
favored the Commonwealth was not credible.
For these reasons, the defendant argues, the verdict was against the
weight of the evidence, and he is entitled to a new trial. However, the defendant's arguments concern
matters that are generally within the sole province of the jury. As we have stated in previous cases, this
court does not sit as a second jury in reviewing cases under G.L. c. 278, §
33E.
Commonwealth v. Luce, 399 Mass. 479, 485, 505 N.E.2d 178 (1987).
Commonwealth v. Smith, 357 Mass. 168, 181, 258 N.E.2d 13
(1970). See Commonwealth v. Schnopps, 390 Mass. 722, 459 N.E.2d 98
(1984). The evidence tying the defendant[412 Mass. 290] to the murder was more
than sufficient to establish his guilt beyond a reasonable doubt.
The
defendant argues that his alleged consumption of one‑half of a marihuana
cigarette and two or three cans of beer on the day of the murder rendered him
incapable of forming the mental state necessary to prove murder in the first
degree. The defendant also argues that
the killing may well have taken place during the course of an emotional
argument between himself and the victim.
These two factors combined, the defendant urges, justify reducing the
verdict to manslaughter. We disagree.
While the
defendant testified to having consumed the marihuana and beer, there is nothing
to show that the consumption impaired him in any way. Moreover, there is no indication that the
victim was killed in the heat of passion.
Rather, the record indicates that the victim was strangled from behind,
resisted the attack, and took from three to seven minutes to die an agonizing
death. In these circumstances, there is no justification for a reduction in the
jury's verdict.
Judgment affirmed.
(FN1.) The defendant filed a motion to change
the trial's venue which was allowed. The
trial took place in the Superior Court in Hampden County.
(FN2.)
The defendant testified that the videotape in question depicted himself and the
victim having sexual intercourse.
Several witnesses testified that the victim had destroyed this
videotape.
(FN3.)
The note read as follows: "Dear
Viv, I know you're depressed about all the things to do around the house. I know you have many things to do. Don't let it get you down. I still care for you and lately you have done
so much for me, making love the other night and going out. I love you as a friend. Take care, see you later this week, love
Greg."
(FN4.)
The defendant argues that a number of factors combined to render involuntary
both his statement and the consent to the search and to turn over the clothing
items. First, the defendant argues that
he was very tired during the interrogation, and became distraught once the
police informed him that the victim was dead.
Second, the defendant argues that because the police took so long to
prepare the consent form for the search of his van, he believed he was not free
to leave until he signed it. Third, the
defendant claims that the nature of the setting of the interrogation and the
signing of the consent form, the district attorney's office, was inherently
coercive. Finally, the defendant urges
that he was both distraught over the victim's death and exhausted from the
afternoon's interrogation when the police obtained the clothing from him.
(FN5.)
At this point in the investigation, the police were still hoping to find the
videotape depicting the defendant and the victim having sexual
intercourse. See note 2, supra.
(FN6.)
The use of a false statement concerning the videotape in an affidavit filed in
support of the search warrant also did not create a substantial likelihood of a
miscarriage of justice. As will be
discussed below, the statement concerning the videotape was not necessary to
the finding of probable cause to issue the warrant. The judge properly admitted in evidence the
videotape seized from the defendant's attorney.
(FN7.)
The defendant's argument that the false statement is automatically rendered
reckless because the police should not have viewed the videotape prior to the
issuance of the warrant also fails. The
defendant has established neither that the statement was recklessly made nor
that it was necessary to the magistrate's finding of probable cause.
(FN8.)
The defendant also attacks the indictment on jurisdictional grounds. The indictment read (in traditional form) as
follows: "The Jurors for the said
Commonwealth, on their oath, present that Gregory J. Martino of Greenfield in
the County of Franklin, aforesaid, on or about the twenty‑first day of
September one thousand nine hundred and eighty‑seven at Montague in the
County aforesaid, did assault and beat Vivian A. Morrissey with intent to
murder her, and by such assault and beating, did murder Vivian A.
Morrissey." The defendant
acknowledges that this indictment tracks the language of the statutory form set
forth at G.L. c. 277, § 79 (1990 ed.).
Although the
defendant raises this argument for the first time on appeal, the Commonwealth
has fully briefed it, perhaps because the defendant has couched the argument in
jurisdictional terms. The argument is
without merit. As one noted commentator
has observed: "An indictment which
used the statutory form and charged the defendant with murder was not vague,
indefinite or in violation of Article 12 of the Declaration of Rights, and in
any event if the allegations were not sufficient to enable the defendant to
prepare his defense, he was not entitled to have the indictment dismissed but
was entitled as a matter of right to such particulars as might be necessary in
order to give him reasonable knowledge of the nature and grounds of the crime
charged." K.B. Smith, Criminal
Procedure § 730 (1983), citing
Commonwealth v. Baker, 368 Mass. 58, 330 N.E.2d 794 (1975). There is nothing to indicate that the
defendant ever requested a bill of particulars.
No reason exists to question the adequacy of the indictment.
(FN9.) We reject the defendant's argument that
the restraining order obtained by the victim should not have been introduced in
evidence as an exhibit. The restraining
order, however, had been referred to on a number of occasions by several
witnesses in their testimony. As has
been discussed above, this testimony was properly admitted. Thus, the introduction of the order itself could
not have harmed the defendant.
We
also reject the defendant's claims that the judge's limiting instructions to
the jury with respect to their consideration of the evidence were
deficient. The judge accurately and
thoroughly instructed the jury on the purpose for which they could consider the
evidence. Moreover, an appropriate
limiting instruction was given each time particular portions of the evidence
were introduced without objection by the defendant's trial counsel.
(FN10.)
"Ladies and gentlemen, with respect to the last statement made by the
witness, you are to totally disregard that statement, you are to strike that
statement out of your minds. You have
taken an oath as jurors to follow my instructions regarding the law, I have
made very definitive rulings regarding the law in this case, and I am telling
you must abide by it and you must abide by what I am telling you, and that is
to strike from your minds and strike from any consideration whatsoever any
statement‑‑the last statement that was just made by the
witness. It was not competent testimony,
it was not acceptable testimony, and it is not testimony that will be
considered within this trial."
(FN11.) "And I suggest to you that he's
had a year plus since the time that he talked to the police to work out some
explanation of why he would leave a note containing mistruths, why he would
leave a note that refers to making love when there is no way of being able to
show that that's what happened and that didn't happen and that was something that
was completely out of the relationship at the time that he wrote that note.
"And
if you compare it to what he says in his statement, you will see that what he
was talking about in his statement was that very note and it's now a year later
when he has contrived a story to try to explain away all of the evidence that
was left behind."
(FN12.) The defendant's initial failure to
tell the police that he had recorded the telephone conversations could also be
considered indicative of consciousness of guilt. See
Commonwealth v. Lavalley, 410 Mass. 641, 649, 574 N.E.2d 1000 (1991).
(FN13.) This statute provides, in pertinent
part, for the use of an alternate juror to replace a deliberating juror as
follows:
"If,
at any time after the final submission of the case by the court to the jury and
before the jury has agreed on a verdict, a juror dies, or becomes ill, or is
unable to perform his duty for any other good cause shown to the court, the
court may order him to be discharged and direct the clerk to place the names of
all of the remaining alternate jurors in a box and draw the name of an
alternate, who shall then take the place of the discharged juror on the jury,
which shall then renew its deliberations with the alternate juror. The court shall have jurisdiction to receive
the verdict of the jury constituted under the provisions of this section and
shall have jurisdiction to render judgment in said case."
(FN14.) Compare Commonwealth v. Connor, 392 Mass. 838, 842‑847, 467 N.E.2d
1340 (1984) (reversal required where the record failed to establish that
discharge of juror was for good cause shown and defendant objected to the
discharge); Commonwealth v. Robichaud, 358 Mass. 300,
303, 264 N.E.2d 374 (1970) (reversal required where defendant was excluded from
voir dire of juror over his objection); Commonwealth v. Perez, 30 Mass.App.Ct.
934, 935‑936, 569 N.E.2d 836 (1991) (defendant's conviction reversed
where sick juror was discharged in the absence of the defendant and his
attorney over the defendant's objection);
with Commonwealth v. MacDonald
(No. 1), 368 Mass. 395, 400, 333 N.E.2d 189 (1975) (court found that
because the defendant failed to object to his absence from private interviews
with the jurors, he was precluded from raising the issue on appeal); Commonwealth
v. Hicks, 22 Mass.App.Ct. 139, 146‑147, 491 N.E.2d 651 (1986)
(although the judge's interrogation of jurors outside the presence of the
defendant constituted error, the error was harmless where defendant failed to
object).
(FN15.) A request for a voluntary manslaughter
instruction on the basis of heat of passion was properly denied by the
judge. There was no evidence to suggest
a killing "for a sudden transport of passion or heat of blood, upon a reasonable
provocation and without malice, or upon sudden combat."
Commonwealth v. Soaris, 275 Mass. 291, 299, 175 N.E. 491
(1931). Trial counsel's request for this
instruction and his refusal to accept the intoxication instruction were not
inconsistent with the defense or disadvantageous to the defendant.